?• You have just purchased a home in a new community development and after moving in you have discovered that your home is built on a sacred Aboriginal burial site. Aboriginal people have been contesting the development of this land for years and have now decided to publicly protest on the building site. How would you view this situation and what would you do?
Discourses of Special Rights• In Canada a discourse of special rights when it comes to the relationship between Aboriginal and non-Aboriginal people• This discourse a source of conflict and contention among Aboriginal and non-Aboriginal people within the national framework and discourse of nation.• Segments of dominant society view Aboriginal special rights as and advantage, even though history has shown the opposite• Ramos argues that there is a disconnect between perceptions and applications of so-called “special” rights.• Ramos looks critically at this dissonance though an analysis of dominant media newspaper coverage of the 1999 Marshall decision and the conflict between Mi’kmaq and non-Aboriginals that followed
Discourses of Special Rights• The federal government legally defines Aboriginal people, traced back to the Royal Proclamation of 1763, which declared Aboriginal people be treated as nations and compensations for lands taken from them be made directly by the Crown. Thus, there was recognition the prior existence of First Nations and their sovereignty.• Royal proclamation followed by a series of Indian Acts and treaties with the aim of systematically eliminating the authority of pre-existing Aboriginal governments, obtain their lands and assimilate them
Indian Act: A State Tool of Aboriginal Oppression• Indian Act and treaties saw the demonization and loss of Aboriginal language, cultural practices, beliefs, customs, identities and the founding of Indian reserves and residential schools.• Federal government assumed fiduciary responsibilities. Aboriginal people seen as wards of the state. Created a legally defined marginalized people• Indian Act dictated who is and who is not an “Indian”. Four categories emerged: Status Indians, non-Status Indians, Metis, Innuit
Special Plus or Negative?• Constitution Act of 1982 Canadian government reaffirmed “Aboriginal” rights. It differentiated Aboriginal from other Canadians and recognized their “special” rights• Many Canadian believe their recognition is unfair. Argument is it grants privileges others don’t have.• Paradoxical situation in Canadian society where non- Aboriginal Canadians say they have sympathy for Aboriginals, but as issues become more concrete this wanes, and the argument becomes why should they pay tax dollars because of treaties signed with the British centuries ago• Many Canadians see special status as running counter to tenets of liberal democracy
Special Plus or Negative?• Ramos argues to recognize Aboriginal group rights is not necessarily to contradict the tenets of liberal democracy. Argues that through the recognition of their group rights equality can be achieved.• Argues that in a democracy minority groups do not have the numerical power that is necessary to have their needs met in processes of democratic decision- making.• Equality can only be achieved if Aboriginal rights are recognized
Special Plus or Negative?• Ramos argues that the term “special” has 2 meanings one positive which is seen as a plus or addition, and the other negative which is seen as harmful, marked, peculiar, uncommon and limited.• Many Canadians see recognition of Aboriginal group rights as special plus• Reality is special has been negative for Aboriginal people
Special Plus or Negative• Indian Status established to reduce their power; special status used to isolate and stigmatize Aboriginal people• Meant lose of land and material resources, displacement, disenfranchisement, residential schools, destruction of cultural practices, discrimination and control by state and thus not a privilege
Special Plus or Negative• 1969 White Paper on Indian policy which was based on universal citizenship ignored the group rights, cultural differences and past treaties of Aboriginal people. It proposed to eliminate their special status and abolish past agreements. Special was seen as discriminatory –as offering them rights that others could not enjoy• Up to today Aboriginal and federal/provincial government have different perceptions of Aboriginal rights which has implications for their negotiations with one another
Special Plus or Negative?• One hand governments trying to negotiate institutional and societal incorporation of Aboriginal peoples into Canada and on other hand Aboriginal peoples trying to negotiate preservation of their culture, institutions and practices• Several supreme court decisions have been willing to uphold Aboriginal rights, but these decisions made and implemented in a society that is unprepared to reverse historical inequalities
Marshall Decision: Triumph and Disappointment• Donald Marshall charged with fishing out of season, fishing with illegal nets, and selling eels without a licence. Pleaded not guilty, arguing it was his treaty right as a status Mi’kmaq to fish and sell his catch citing the 1760 treaty signed by the British and Mi’kmaq• Provincial trial and appeal found him guilty, the Supreme court tried the case and overturned the decisions of the provincial court. Applied looser interpretation of the 1760 treaty and found that Mi’kmaq had the right to hunt, gather and sell goods. These rights were limited to the ability to sustain a modest living and regulation leaving terms open to negotiation between Mi’kmaq and federal government
Marshall Decision: Triumph and Disappointment• This decision saw Mi’kmaq trapping lobster in Miramachi Bay.• East coast lobster fishery multi-million dollar industry that had been closed to the Mi’kmaq for decades, due to the professionalization of the industry in the 1970s which required advanced machinery and expensive licences that Mi’kmaq because of the lack of collateral could not obtain. Thus this supreme court decision meant the Mi’kmaq now had the right to legitimately fish, set traps and sell catches without a licence. This had a deep felt impact on Mi’kmaq community who because of because of their exclusion from the fishing industry had seen high rates of unemployment
Marshall Decision: Triumph and Disappointment• Created a conflict for non-Aboriginal commercial fishermen who had licences and were not able to fish because the season was closed. They believed they were being excluded from the “special” rights offered to Aboriginals. They feared lose their edge in the market and would lose money if their fishing licences lost their value• They framed their resistance by arguing Mi’kmaq fishermen would lead to problems of overfishing and conservation• The issue was about sharing not conservation. Non- Aboriginal fishermen worried about having to share profits than about depleting lobster stocks. Also fear that their licences would be devalued.
Marshall Decision: Triumph and Disappointment• When government had tried to buy licences from non- Aboriginal fishermen to give to Aboriginal fishermen they hiked their prices to as much as a million dollars• There was little consideration by non-Aboriginal fisherman how before Marshall decision, Aboriginal people had been excluded from the fishery by financial barriers and purposeful exclusion• Non-Aboriginal fishermen interpreted the situation as a case of special plus for the Mi’kmaq, in that it gave Aboriginals rights beyond those to which others were entitled; they did not view it as the confirmation of a historical contract or as offering the excluded access to an otherwise closed industry
Marshall Decision: Triumph and Disappointment• Decision provoked ensuing violence which saw the destruction of Aboriginal lobster traps and tit-for-tat violence among Aboriginal and non-Aboriginal fishermen• Non-Aboriginal fishermen wanted everyone both Aboriginal and non-Aboriginal to be treated the same. But what the non-Aboriginal fishermen and Canadian failed to appreciate was that Aboriginal peoples are not the same as other citizens; they are legally recognized. Moreover this special status often led to special negative treatment. Historically for Mi’kmaq ‘special’ status led to being unable to access fishing licences and exclusion from traditional livelihood
Marshall Decision: Triumph and Disappointment• Response to the violence was the push from government for Aboriginal compliance to halt fishing; also political commentators began to critique Supreme Court decision• Fisheries minister Herb Dhaliwal was charged with negotiating an agreement between Aboriginal leaders and non-Aboriginal fishermen. Meanwhile, non-Aboriginal fishermen engaged in racist protest• While 35 bands reached an agreement 2 (Burnt Church and Indian Brook) were unwilling to stop fishing while Dhaliwal tried to impose new limits on # of traps• The trap limits set for Aboriginal people were disproportionate to that of non-Aboriginal fishermen.
Marshall Decision: Triumph and Disappointment• By setting a limit Dhaliwal circumventing the process for negotiating a “modest living” and “regulation”. The message sent to Aboriginal peoples: the government was willing to negotiate so long as bands were willing to accept whatever the government offered. Result was halt to the moratorium on fishing by Aboriginal people, this led to further violence and protest• Continued criticism of the Supreme Court decision ; belief that ruling in favor of one ‘Charter group’ would apply to all others also that profit sharing and control of natural resources would soon escape the control of the federal government
Marshall Decision: Triumph and Disappointment• In response to criticism the Supreme Court ‘clarified’ its decision and accused federal government, Aboriginal people and non Aboriginal fishermen of misinterpreting decision. Argued that initial decision clearly stated that it was subject to governmental regulation and that it only applied to fishing• Government’s power to regulate the treaty is repeatedly affirmed by the decision. This clarification took away the decision’s power to set a precedent for claims in other resource development sectors. This rendered Marshall much less ground-breaking
Marshall Decision: Triumph and Disappointment• Thus although Marshall should have bolstered Aboriginals rights, better enabling them to survive though traditional livelihoods and compete in the dominant economy, it ended by being another example of special negative consequences. Largely because the federal government did not uphold the Court’s decision and because segments of the non-Aboriginal community felt threatened by the perceived advantage of Aboriginal ‘special’ rights• Marshall decision and ensuing events tells us that perceptions of Aboriginal special status must be examined. Need to engage with the misperceptions of ‘reverse discrimination’ that are associated with special plus rights, with specific reference to the history of special negative applications